Lord Harper
Main Page: Lord Harper (Conservative - Life peer)(1 day, 13 hours ago)
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Baroness Gerada (CB)
My Lords, I thank the noble Lord for his “any old” comment; I am “any old” general practitioner. I will pick up a few issues. One is around the register being made publicly available. I absolutely would not want my name on a publicly available register as somebody providing the services of assisted dying—not because I would be ashamed but because of the hate mail that I would get and the distress that I would already have. That does not mean that I am against some form of register. Of course there can be a register, just as there is for doctors who do Section 12 approvals under the Mental Health Act, and for doctors who do all sorts of things, but to have a publicly available register goes one step too far.
The second issue is that we are—I am—already getting confused about the opt-in/opt-out; we saw that earlier. If this becomes law, all doctors must be trained in assisted dying, whatever that training involves; the royal colleges will determine that. Just as all doctors are trained in the termination of pregnancy, even though they may not deliver a termination of pregnancy—whether they opt out of delivering any services is up to them—all doctors must be competent in this area. I have been a GP for nearly 40 years and have worked with doctors who do not want to get engaged at all in the delivery or any aspect of the termination of pregnancy. Nevertheless, they are there to counsel their patients and direct them to a doctor who is available and willing.
Lord Harper (Con)
The noble Baroness said that she does not want a publicly available register. Does she think that the patients of a general practitioner have the right to know whether that general practitioner is willing to provide assisted suicide services?
Baroness Coffey (Con)
My Lords, I strongly support Amendments 169, 268 and 657. In my discussions with a variety of doctors’ representatives, two issues clearly came out straightaway. They volunteered them— I did not ask for them—and they were about how this must shift to being an opt-in process. As it stands, it still definitely feels like an opt-out process in this legislation. The other thing that they were absolutely clear about was that this should not in any way be considered a treatment, because it is not. I do not need to repeat some of the arguments that have already been well articulated by the noble Lord, Lord Stevens of Birmingham, and others.
On Amendment 169, it is sensible to have a register. The noble Lord, Lord Moore of Etchingham, explained one of the reasons why, but I think that it is just for straightforwardness, so that people who are considering this potential approach can do it. Although I disagree with the BMA, and we are not discussing the clauses today about whether things can be raised by judgment, it would be helpful to give confidence in this process.
The questions that I have are principally for the sponsor and the Minister. The noble Baroness, Lady Blake, knows that I value her very much, but I appreciate that she is not the policy Minister, so if she does not have the answers today I would be more than happy to receive a letter in this regard from the relevant Minister. I want to talk through some of the amendments that the noble and learned Lord, Lord Falconer, has tabled. On Amendments 422 and 423, there are other groups later when I think we will discuss replacement of doctors—it does not matter whether that is in this group or not. I would like to get a sense of why he feels the need to do that.
One of my broader concerns, more generally, about Amendment 669A is that, while I appreciate that the noble and learned Lord is trying to address a challenge that has been laid, it still feels as though it has either not gone far enough or is almost tipping it the other way. If we consider the impact assessment, the Government suggest that even by year 10, fewer than 8,000 people may have taken advantage of the Bill. That contrasts significantly with Marie Curie’s figures that over 300,000 people engage with hospice care and palliative care every year. It does feel, and part of the debate we had earlier almost suggested it, that doctors should do it unless they choose not to, and I strongly believe we should do it the other way. Some of the amendments to the Bill lend themselves to that opt-in register, in effect, and then providing the necessary training to support this approach. I think it is fair to say that Schedule 3 is comprehensive, but again, sometimes when you are relying on aspects, you end up becoming a minority, and that in itself can bring coercion to perhaps go against your own personal views.
A few weeks ago, we got into the whole issue of providing treatments and the legal ruling that led to the GMC changing its guidance, which was deemed enough. Actually, the GMC has just published new draft guidance tackling issues to do with personal beliefs and the like. In particular, I am concerned that, unless the Bill is explicit that this is not a treatment, with all the forward implications of the fact that it is not there, we may end up with a lot of case law, or a lot of rulings. Also, point 23, I think, of the draft guidance that the GMC has put forward suggests, basically, “If there’s no alternative, you’re going to have to do this. You’re going to have to offer it, whether you like it or not”. That is more or less what it says, so it would be useful to hear from the Minister what discussions have been had with the GMC in considering that approach in the guidance, because it is relevant to our consideration of the Bill.
Amendment 888, tabled by the noble and learned Lord, extends Clause 31 to everybody in Scotland. I have an amendment, which I did not talk to because Amendment 888 was in this group, which is just trying to understand whether it was the Government or the sponsors who had already started to expand a series of primary legislation issues, I guess, to practitioners in other countries where the Bill does not generally apply. We had a debate a while ago about Section 30 orders, which is now somewhat redundant given the decision by the Scottish Parliament not to proceed with the Bill that it was considering, but I want to get a sense from the Government of where they are on this. I thought that the issues proposed in Amendment 888 would have been covered by a Section 104 order if the Scottish Parliament had gone ahead, so I want to get an understanding of the reasons for tabling this. If the Bill is going further and trying to bring the Scottish medical profession into potentially providing services in this country, that opens up a whole new chapter of consideration. In asking these questions, I am just trying to deepen my understanding and get clarification, both from the sponsor and from the Minister.
Lord Harper (Con)
My Lords, I want to cover a couple of points and reflect on what the noble and learned Baroness, Lady Scotland, said, which was that, despite the debate, there is a sense that people are agreed that this should be an opt-in rather than an opt-out process. The problem is that the way the Bill is drafted does not make that clear, and that is not just my view but the view, as we have heard, of many of those who are going to be involved in delivering this service. I will not go into that in great detail because many people have done so, but the Royal College of General Practitioners thinks that there should be a register and a more explicit opt-in system. Some of the other royal colleges do too and, as I think somebody else said, the Royal College of Nursing thinks it should be very clear that no one should be forced to participate. Of course, I give way to the noble and learned Lord.
Lord Falconer of Thoroton (Lab)
The noble Baroness, Lady Gerada, made it clear that the Royal College of General Practitioners was not in favour of a register. It may well be in favour of an opt-in process, but not a register.
Lord Harper (Con)
The noble Baroness said that it was not in favour of a public register, and I did not say that it was, but that is a helpful clarification that the Committee has now been able to hear.
The problem, though, as I said, is with how the Bill is drafted. There are a couple of points. First, I strongly support Amendment 657, which says that assisted dying is not to be regarded as a medical treatment. As I said, I do not need to set out the details—the noble Lord, Lord Stevens, did that admirably. What I would ask the sponsor of the Bill, the noble and learned Lord, Lord Falconer, is whether he regards the provision of assisted suicide as a medical treatment or not—forgive me if he has said this on a previous occasion, but I do not think he has. If he does regard it as a medical treatment, that would be clear. I would not agree with that, but it would make it more important that we change the Bill to make it clear that it is not. If he does not think it is a medical treatment, I cannot see any objection to accepting this amendment and making that clear.
This is not dancing on the head of a pin; it is really important, because for this to be opt-in, not opt-out, everyone involved has to be clear about their responsibilities. The noble Baroness, Lady Andrews, read out Clause 31(1), which states:
“No person is under any duty to participate in the provision of assistance in accordance with this Act”.
There are two problems with that. First, they may not be under a duty according to the Bill, but the problem is, as the noble Lord, Lord Stevens, said, that if the provision of assisted suicide is regarded as medical treatment, medical professionals, in particular, have a whole range of other professional and legal duties that they have to undertake. They may not be compelled by the Bill to participate in providing assisted suicide, but some of their other legal duties may force them to do so if it is regarded as a medical treatment. It would be helpful to clear that up.
Lord Falconer of Thoroton (Lab)
I am absolutely amazed to hear that. Clause 5(1) says:
“No registered medical practitioner is under any duty to raise the subject of the provision of assistance in accordance with this Act with a person”.
That would mean, as a matter of law, that there is never a duty to raise it. Clause 31 says:
“No registered medical practitioner is under any duty to become … the coordinating doctor … or … the independent doctor”.
There could not be—take it from me—greater legal clarity that there is no legal obligation either to raise it or to participate in it. Whether it is a treatment or not, which is a most interesting philosophical question and I am not underplaying that issue, the reason that the terms of the Bill are so absolutely clear is so that no doctor could be in any doubt whatever that they are under no legal duty.
Lord Harper (Con)
The problem is that I do not think it is that clear, and it is not just me. If it were that clear, then the royal colleges that think that it should be made clearer would not think that. The problem is—
Lord Harper (Con)
Hang on, let me just finish the point. With respect, people on my side of the debate keep being told off for speaking at length. There is a choice here. I want to try to make my remarks brief, but if I am going to take lengthy interventions from the noble and learned Lord, which I am quite happy to do, then I do not expect to be shouted at if I end up going over the time limit. People cannot have it both ways, but I am delighted to take his intervention.
Lord Falconer of Thoroton (Lab)
I never make long interventions. The complaint of the doctors is that they want an opt-in and not an opt-out. Their complaint is not that it is not clear enough that they are under no duty to give advice and no duty to be a doctor under the Act.
Lord Harper (Con)
The noble and learned Baroness, Lady Scotland, said that there was a great agreement in the House that there should be an opt-in system, and the noble and learned Lord is nodding his assent to that. If the Bill delivered that, the royal colleges that say they want an opt-in system would presumably be content with it. They are not; they want it to be changed to deliver that opt-in system.
Lord Falconer of Thoroton (Lab)
I completely accept the point about opt-in. I am pressing the noble Lord on his question as to whether there could be a doubt that a doctor is under a duty to raise it, and I am saying that there is absolutely no doubt in the Bill that no doctor is under a duty to be the doctor under the Bill or to raise it under the Bill. On the question of opt-in, everybody accepts that there should be opt-in, and I have put a provision in my amendments to that effect.
Lord Harper (Con)
I am very clear that the Bill does not create a duty for people to participate. The problem is that, if there are other statutes and responsibilities for medical professionals, there is then a lack of clarity. It does not matter whether the noble and learned Lord thinks so; if the medical professionals who have to make judgments think it is not clear, that is a problem and it should be put beyond doubt. That is the only point I am making.
The second point comes down to the register. The noble Baroness, Lady Gerada, did not answer the question I put to her. She gave a long answer, but it was an answer not to my question but to a different one that I had not asked. I am grateful that she has just come back into the Chamber.
Baroness Gerada (CB)
Can I give a clarification? I have just been in contact with most of the senior officers at the Royal College of General Practitioners. To put it on the record, to the best of my and their knowledge, the RCGP has not called for a register, a public one or otherwise.
Lord Harper (Con)
I am grateful to the noble Baroness. I said they were in favour of an opt-in system; I did not say they had called for a register. I want a register and I support the amendments that say we should have one. As the noble Lord, Lord Moore, said, it should be a public register. In essence, if you did not have a public register, as soon as people asked their GPs and other medical professionals for their view, in the modern world that information would become public. It would be much better to have a proper, well-managed system that was published, and then everyone would be clear about where people were on this and could access the relevant medical professionals if they wished to use them.
Baroness in Waiting/Government Whip (Baroness Blake of Leeds) (Lab)
Apologies, I was taken by surprise by the lack of an Opposition Front Bench. I thank noble Lords for another important debate on opting into and out of providing assistance and various functions under the Bill. As I have already made clear, I will keep my comments limited to amendments on which the Government have major legal, technical or operational workability concerns.
I first turn to Amendment 189, tabled by the noble Baroness, Lady Fraser. This amendment may give rise to Article 8 ECHR issues, as publishing a register of professionals willing to participate in voluntary assisted dying could expose those individuals to intrusion or a risk to personal safety.
Amendment 657, tabled by the noble Baroness, Lady Fox, seeks to specify:
“The provision of assistance under this Act is not to be regarded as a medical treatment”.
The Government have made no decisions on what a service delivery model would look like. The Committee may wish to note that this amendment may impact the possible service models for voluntary assisted dying by limiting what the Government can achieve through Clause 41 regulations. Clause 41 currently enables the Government to make amendments to legislation, including the NHS Act 2006, to ensure that assisted dying could be delivered as part of the health service, which may require amending or modifying definitions of “treatment” to include assisted dying.
Amendment 664, tabled by the noble Baroness, Lady Lawlor, would allow health and social care professionals to opt out of all training in relation to the Bill.
Lord Harper (Con)
I am sorry to interrupt the Minister, but I am grateful that she has allowed me to do so. I want to make sure that I understand correctly what she has just said. I think she just said that, at the moment, the NHS would not be able to deliver this service unless there were some amendments made to make it clear that this was indeed a medical treatment, and it would therefore be necessary to make those amendments to explicitly define it as a medical treatment. I wanted to check I have understood her because, if that is what she is saying, it then opens up the very complex and difficult issues that the noble Lord, Lord Stevens, so ably set out a short while ago.
Baroness Blake of Leeds (Lab)
I confirm that it is “may require”: that is the response I wish to give him on that. Again, it is pushing the limits of what I am able to say at this point, in terms of future policy.
Lord Harper (Con)
I absolutely accept, as my noble friend Lady Coffey said, that the Minister does not have the policy responsibility, so I am absolutely not going to press her for an answer now. However, it would be helpful if we were to get a written response from the policy Minister that clarifies this point about whether it would be necessary to amend the law so that it was explicitly a medical treatment for the NHS to be able to provide this service. That would be helpful, but I am not going to press her on this. That would be most unfair.
Baroness Blake of Leeds (Lab)
I am certainly happy to take the noble Lord’s comments to my noble friend Lady Merron and see whether it is appropriate for her to respond in the way that the noble Lord suggests.
Perhaps I could start again on my response to the noble Baroness, Lady Lawlor. Her amendment would allow health and social care professionals to opt out of all training in relation to the Bill. It would require that, where a health and social care professional agrees to training, written consent must be given. The amendment also creates an obligation to provide official guidance on training in relation to the Bill on the day it receives Royal Assent. The requirement to publish official guidance on the day of Royal Assent may be unachievable, given the work on implementation that must be undertaken before such guidance can be published. It is also unclear how this interacts with other requirements in the Bill, such as the duty to consult various persons before any guidance is issued.
I turn to Amendments 667A and 848C, tabled by the noble Baroness, Lady Hollins. Amendment 667A would require the Secretary of State to make regulations to provide for a specialist register of assisted death practitioners and the criteria for entry in that register. As the Government would begin work on regulations only after the Bill receives Royal Assent, the requirement to make regulations within one month of the day on which the future Act is passed may be unworkable. In addition, significant policy work would be required to understand what a specialty for assisted dying would look like.
Amendment 848C would additionally prevent registered medical practitioners performing functions under the Bill if they are not included on the GMC’s existing specialist register with a primary specialty in geriatric medicine, palliative medicine, medical oncology or clinical oncology. My noble friend Lady Blackstone referred to that. The effect of this amendment would be to exclude clinicians who may have relevant experience and qualifications. This may limit the Government’s ability to design an optimal service.
Amendments 681 and 864, tabled by the noble Lord, Lord Goodman, give rise to two key workability issues. First, they duplicate matters largely covered in Clause 31 and Schedule 3. Secondly, Amendment 681 would introduce a complete right to conscientiously object to taking part in the provision of assistance. This conflicts with Clause 31(7), which contains a small number of duties that cannot be opted out of—for example, recording the cancellation of a first declaration, or passing on or recording information about a person in their medical records, which may be relevant to their eligibility for assisted dying. If a person is able to opt out from participating in any aspect of the Bill, without any exceptions, this may render the Bill unworkable.
I turn to Amendments 668 and 670, tabled by the noble Lady, Baroness O’Loan. Amendment 668 seeks to replace “registered medical practitioner” with “person” in Clause 31(3). This would widen the provision, so that individuals with express statutory duties in the Bill would not be obliged to perform any function under the Bill. This would include, for example, the Secretary of State, Welsh Ministers, the assisted dying commissioner and members of an assisted dying panel. Allowing opt-outs for these roles could make the Bill unworkable. Amendment 670 also seeks to provide an opt-out for ancillary functions, such as administrative tasks or the supervision of staff. This could broaden the range of activities that a person can refuse to carry out and give rise to significant operational issues.
Amendment 679, tabled by the noble Baroness, Lady Grey-Thompson, could limit the places where assistance could be provided. It could, for example, preclude access to an assisted death for those residing in some private hospices or care homes. The Committee may wish to note that this amendment may result in inconsistent treatment for patients when seeking to access an assisted death and could give rise to Article 8 ECHR issues, unless a reasonable and objective justification were provided.
As noble Lords will be aware, the other amendments in this group have not had technical drafting support from officials. The issues raised by these other amendments are rightly matters for noble Lords to consider.
To respond to the direct question from the noble Baroness, Lady Berridge, no civil servant working on the Bill was put under any pressure to work on it.
In response to the noble Baroness, Lady Smith of Newnham, policy decisions regarding opt-outs within the Bill are for the sponsor. However, once legislation is passed, the Government as a whole are expected to implement it. If an individual had an objection to working on assisted dying policy due to a personal conscience objection, issues would be handled case by case, through discussion.
Lord Harper (Con)
Given that I had raised the concern and the noble and learned Lord took care and trouble in responding to it, I listened very carefully to what he said. The problem is that what he said about no one being forced to participate in the steps set out in Clause 26 and all the other provisions would not cover—to pick the example from the noble Baroness, Lady Fox—the porter who is being asked to take the patient to the room in which they were to be assisted in ending their life. If that porter were to say, “I don’t wish to do that because I don’t wish to help this person end their life”, nothing in what the noble and learned Lord said would provide them with any protection, which is why many of us do not think this provision is wide enough.
The unfortunate thing is that it probably provides quite a lot of protection to the more senior people in this process—the doctor and the medical professionals—but it fails to provide protection to the more junior people involved in this process. Those without medical qualifications, such as the porters, the administrative staff, the cleaners and the other people who work in a healthcare setting, do not appear to be protected at all.
Lord Falconer of Thoroton (Lab)
In relation to a porter, for example, a porter cannot be required to be in the room or helping in—I said Clause 26 but I meant Clause 25, which is in relation to the provision of assistance; I apologise for that. The noble Lord has given an example of a cleaner. There are many other examples of administrative staff in a hospital, for example. The sponsors of the Bill have taken the view that there should not be a conscience clause in relation to, for example, a cleaner or somebody doing ordinary administrative tasks, because you have to make these institutions run properly. What there should be an absolute bar on is either being a doctor participating in the process or being actually involved in the process of providing the lethal drugs under Clause 25. We have drawn the line there, and it is for the House to decide whether it thinks the line is in the right place.
Lord Falconer of Thoroton (Lab)
Can I go on for a bit? I will come back at the end if there is time, but let us keep going.
Next, on the register, I think Amendment 189 from the noble Baroness, Lady Fraser, is trying to do two things. First, it is trying to have some sort of opt-in process, because it says:
“Registered medical professionals who are unwilling or unable to conduct preliminary discussion are not required to join the register under subsection (6)”.
That is her proposed new subsection (8). That is not really an opt-in; you are “not required to join”. My conversations, in particular with the BMA, make it clear that it wants the words “you’ve got to opt in”, so I am not sure that that bit on opt-in or opt-out quite gets it.
On the other point about a register, it might be that in time there should be a register. I am very strongly not in favour of putting a register in the Bill. Let the Secretary of State and the medical profession say if that is an appropriate thing to do. I do not think it goes to the fundaments of the Bill. Although I am struck by the robustness of the noble Lord, Lord Moore, on behalf of doctors, I do not think, without further consultation after the implementation period has gone through and without a bit more knowledge about what the effect might be, that one should willy-nilly put on to a public register, in the public domain, the names of people who are willing, and therefore people who are not willing, to do assisted dying.
Lord Falconer of Thoroton (Lab)
You have to opt in to training in consequence of my amendment. Therefore, there can be no duty to participate. I do not think it is necessary to say that in the Bill.
The noble Lord, Lord McCrea, who is not in his place, raised the point about care homes, hospices and other institutions. Along with the sponsor of the Bill in the Commons, I have had considerable conversations with Hospice UK. Its anxiety is that if it says “no”, institutionally, to assisted dying, that could affect in various ways its entitlement to funding, particularly from the state. I am alive to that concern, and we should deal with it in the Bill; I have been working on trying to do that. I should make it clear that this is limited to hospices only. We are looking at that area, and once we have done so, it may be limited to private—not NHS—hospices. It requires work, but the point made has validity in relation to hospices but not care homes.
Lord Harper (Con)
This will be my last intervention, I promise. I just want to press the noble and learned Lord on this issue. In the exchange we had earlier, he confirmed that in Clause 31 the right to not participate is “in the provision of assistance”. I was unclear about the definition of “provision of assistance” and he confirmed that it meant the steps set out in Clause 25 —he corrected himself—which is titled “Provision of assistance” and is about the endpoint of the process: the provision of the poisons that will end someone’s life. I think that he confirmed, but I want to make sure that I am absolutely clear so that I do not misrepresent him, that that means it would not be open to, for example, the porter who did not want to take the person to the room in which the substances would be administered to say that they had an objection to this process and would not carry it out. They would not be able to use the provisions under the Act, they would not have the protections, and I do not think that that is right.
Baroness Keeley (Lab)
My Lords, on the same principle of making it safe, I will speak to my Amendment 219, which would open an extra channel of communication. It would require the person’s GP to disclose relevant information about the person’s eligibility for assisted dying. That information would be disclosed, first, to the doctor who conducts the preliminary discussion; secondly, to the co-ordinating doctor making the assessment; and, thirdly, if the GP believes that the person may not be eligible, to the commissioner.
The principle behind the amendment is simple. The doctors and the panel need to be as informed as possible about the applicant in those circumstances. A GP may well have crucial information and, at the moment, the Bill does not give a clear opportunity for that information to be shared. The GP’s only role in the Bill, as has been said previously, is to receive notifications. As my noble and learned friend Lord Falconer put it,
“the GP, in the structure of the Bill, is not somebody who has to be involved … the GP is somebody who is receiving information”.—[Official Report, 12/12/25; col. 478.]
This seems to be a missed opportunity. It is not hard to think of cases where a GP might have relevant knowledge. There are instances of fluctuating capacity, where a GP might well know more about the person and their mental capacity than the assessing doctors and the panel. There are cases of coercion, where the assessing doctors might miss the signs. Where there is doubt over the person’s illness and their six-month prognosis, a GP’s input could be essential.
The Bill requires the assessing doctor to make such inquiries of professionals who are providing, or who have recently provided, health or social care to the person, as the assessing doctor considers appropriate, but that is quite a broad provision. Crucially, it is a one-way process. The assessing doctor can make an inquiry with a person’s GP, but the GP is not supposed to offer helpful information unless they are specifically asked for it. That seems an obvious gap.
In a previous group, we discussed amendments that would give a greater role to the GP, but those amendments were criticised as being unrealistic. This amendment, by contrast, would make a small change, which would enhance the protections already in the Bill.
The report of the Demos commission, chaired by my noble and learned friend, said that a key element in the assisted dying regime was
“a doctor who, where possible, knows the person well”.
That doctor could be the patient’s general practitioner. The Bill does not guarantee that, but my amendment would ensure that, if the GP has significant, first-hand knowledge, that knowledge will be taken into account and not overlooked.
Lord Harper (Con)
My Lords, I will be very brief. I will speak to my Amendments 354A and 432A, which are both about making sure that relevant information from the preliminary discussion is made available to the commissioner and the panel. The reason why I can be brief is that they are similar in what they are trying to achieve to the amendments tabled by the noble Lord, Lord Rook. He set out clearly the rationale for doing so, and I can simply agree with what he said in support of my amendments.
I will comment on the amendments in the names of the noble Lord, Lord Shinkwin, and the noble Baroness, Lady Grey-Thompson. The theme behind all of them is to ensure that there is timeliness in reporting and sufficient clarity about what is recorded to give people confidence that the process has been carried out properly. The noble and learned Lord, Lord Falconer, has been very clear that there is a clear process set out in the Bill, but it is important to give people confidence that it is documented, comprehensively and on a timely basis. There is clearly a debate to be had about being too specific about the timeframe or what is recorded. However, ensuring that there is sufficient detail, and that it is done sufficiently quickly, is important. I commend those other amendments to the Committee.
Lord Wolfson of Tredegar (Con)
My Lords, I hope the Committee will forgive my brevity—I will focus on the few amendments I have tabled in this group.
As the Committee has heard, many of the amendments relate to the preliminary discussion or to recording general medical information as the patient progresses through the procedure. However, as indicated by the noble Baroness, Lady Grey-Thompson, to whom I am grateful for her kind words, my amendments focus on a particular, very important issue.
My Amendments 562A, 563A and 564A seek to probe the circumstances in which it would be appropriate for a patient’s decision to cancel their first or second declaration not to be recorded immediately. There is a point of principle here. While I understand that there can be a genuine debate about whether a decision to initiate the procedure should be recorded and, if so, how quickly, I am concerned that a decision to pull out—which is what a decision to cancel is—whether after the first or second declaration, should not be left hanging there. I do not understand why that should be recorded only as soon as practicable and not immediately.
As the noble and learned Lord will be aware, and for the benefit of the Committee, “immediately” in English law generally means forthwith—as quickly as possible. You will not be in breach of the statute if you do not record it within three and a half seconds. The courts will always take circumstances and context into account. However, “immediately” gives that sense of urgency, which is very important. It is particularly important—this is why I tabled these amendments—when somebody is cancelling or pulling out. We must not have any risk whatsoever that another medical practitioner or healthcare professional might think that the person is still in the system, so to speak, when they have in fact cancelled their first or second declaration.
Also, without too much threshing through the undergrowth on a Friday afternoon—although it always is a Friday afternoon for this Bill—this is particularly important in Clause 24(3). Clause 24(2) deals with when
“the notice or indication … is given to a registered medical practitioner with the person’s GP practice”.
“Immediately” is appropriate there, for the reasons I have given. It is all the more important in Clause 24(3), where
“the registered medical practitioner to whom notice or indication of the cancellation is given”
is not within the practice. The problem there, as drafted, is that you have two uses of “as soon as practicable”. First, the practice must be notified “as soon as practicable”, and then the practitioner notified must “as soon as practicable” record the declaration. That doubling is problematic as well. “Immediately” in this circumstance ought to be the key test.
Therefore, I invite the noble and learned Lord, Lord Falconer of Thoroton, when he replies, to explain whether he believes, as I do, that the failure to record a declaration cancellation immediately might result in harm coming to a patient, and how, if not by way of my amendment, we mitigate that risk.
We are repeatedly told by the Ministers at the Dispatch Box that the focus of the Government’s position is whether this is workable or practicable. Have the Government looked at whether immediate recording is practicable? I would be interested in knowing the Minister’s thoughts and the Government’s position on that point.